Citation Nr: 21064626 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 10-49 398 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 50 percent for a left hip disability status post arthroplasty (left hip disability) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left hip disability is not manifested by adverse symptomatology that equates to at least markedly severe residual weakness, pain, or limitation of motion following implantation of prosthesis or ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor flail joint or a fracture of shaft or anatomical neck of the femur at any time during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for a left hip disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5054, 5250 to 5255. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Navy from February 1984 to April 2004. In April 2014, the Board of Veterans' Appeal (Board) Remanded the appeal. In November 2016, a Veterans' Law Judge not the undersigned issued a Board decision that, among other things, denied a rating in excess of 20 percent for the left hip disability prior to January 8, 2015, granted a temporary total rating for the left hip disability from January 8, 2015, to January 7, 2016, and Remanded the claim for a rating in excess of 20 percent for the left hip disability from January 7, 2016, for additional development. In a November 2016 rating decision implementing the Board's award of increased ratings, the service-connected left hip disability was recharacterized as status post left hip arthroplasty and a total schedular rating was assigned from January 8, 2015, to February 29, 2016. The regional office (RO) then assigned a 30 percent evaluation for the left hip replacement residuals from March 1, 2016. In January 2018, the Board Remanded the appeal. In February 2020, a Veterans' Law Judge not the undersigned issued a Board decision that, among other things, granted the Veteran a 50 percent for his left hip disability effective March 1, 2016. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 order, that incorporated the parties January 2021 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's February 2020 decision to the extent that it denied a rating in excess of 50 percent for the left hip disability. In May 2021, the Board remanded the appeal. Initially, as to the scope of the issue on appeal, the Board finds that given the final November 2016 Board decision and the November 2016 rating decision that, among other things, granted a 30 percent rating for the left hip disability from March 1, 2016, the increased rating claim currently before us is limited to whether a higher rating is warranted at any time from March 1, 2016. Lastly, the Board notes that the Veteran is already in receipt of a combined 100 percent rating at all times since 2014. The Concerns Raised by the JMPR and Post-Remand Compliance As to the concerns raised in the JMPR and post-Remand compliance, the Board finds that the post-Remand development substantially complied with both because it finds that the VA examination obtained in August 2021 provides all needed information to rate his left hip disability under all applicable rating criteria to include range of motion studies that considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Sharp v. Shulkin, 29 Vet. App. 26 (2017); and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Increased Rating Claim The Veteran claims, in substance, that he is entitled to a higher rating for his service-connected left hip disability at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The Amended Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, as of February 7, 2021, the only amendment pertinent to the Veteran's left hip claim is that Diagnostic Code 5054 know only provides a temporary 100 percent rating for the first four months following hip replacement surgery and for ratings less than 50 percent. Therefore, the Board finds that the amendments do not change how this Veteran's left hip disability is rated. Accordingly, the Board finds that a Remand to provide the Veteran with notice of the new rating criteria and have the claim adjudicating applying then is not required. See Sabonis, supra. ii. Correia, supra, and Sharp, supra. Next, in adjudicating below whether the Veteran meets the criteria for higher evaluation for his left hip disability, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the August 2021 VA examiner specifically considered the ranges of motion of the left hip considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination is not required. See Sabonis, supra. iii. The Merits of the Left Hip Claim The Veteran's left hip disability is rated as 50 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5054. In this regard, in relevant part, old and new Diagnostic Code 5054 provides, that, following prosthetic replacement of a hip, a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation; and a 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches following implantation. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board also notes that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the Board's determination of an issue. The Board evaluates all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As to an increased rating under Diagnostic Code 5054, the Board notes that the record on appeal, including the May 2018 and August 2021 VA examinations, documented both left hip pain and limitation of motion. Moreover, the Board finds that the appellant is competent to report on his observable adverse symptomatology. See Davidson, supra. However, the record on appeal, including the May 2018 and August 2021 VA examinations, is negative for left hip weakness. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, the May 2018 VA examiner opined that the Veteran's strength in his lower extremity was 5/5 without muscle atrophy and the August 2021 VA examiners opined that there was no muscle atrophy and these medical opinions are not contradicted by any other medical evidence of record. Id. Similarly, as to the left hip pain, while the August 2021 VA examiner noted that the Veteran had localized tenderness or pain on palpation, the May 2018 VA examiner reported that he did not. Telling, both the May 2018 and August 2021 VA examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with use over a period of time and these medical opinions are also not contradicted by any other medical evidence of record. Id. Likewise, the Board finds it significant that, while normal hip flexion is 125 degrees and abduction is 45 degrees (see 38 C.F.R. § 4.71a, Plate II) and the VA examiners reported that normal left hip extension is 30 degrees, adduction is 25 degrees, external rotation is 60 degrees, and internal rotation is 40 degrees, the Veteran's ranges of motion were as follows: May 2018 VA examination-flexion to 125 degrees (i.e., 100 percent of normal), abduction to 45 degrees (i.e., 100 percent of normal), extension to 30 degrees (i.e., 100 percent of normal), adduction to 25 degrees (i.e., 100 percent of normal), external rotation to 60 degrees (i.e., 100 percent of normal), and internal rotation to 40 degrees (i.e., 100 percent of normal); and August 2021 VA examination-flexion to 115 degrees (i.e., approximately 92 percent of normal), abduction to 35 degrees (i.e., approximately 78 percent of normal), extension to 20 degrees (i.e., approximately 58 percent of normal), adduction to 25 degrees (i.e., 100 percent of normal), external rotation to 50 degrees (i.e., approximately 83 percent of normal), and internal rotation to 30 degrees (i.e., 75 percent of normal). Id. The Board also notes that the treatment records do not document adverse left hip symptomatology that equates to markedly severe residual weakness, pain, or limitation of motion as well as finds that the Veteran is not competent to provide such findings because they are medical in nature. See Colvin, supra; Davidson, supra. Therefore, while the term "markedly severe residual" is not defined by the regulation, the Board finds that it must mean more than the localized tenderness or pain on palpation reported by the 2021 VA examine, when the 2018 VA examiner opined that the Veteran had normal strength and no localized tenderness or pain on palpation, the 2018 and 2021 VA examiners opined that there was no significant limited functional ability, and, at its's worst as reported at the 2021 VA examiner, the Veteran still had over 50 percent in ranges of motion. See Owens, supra. Accordingly, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 70 percent, rating at any time during the appeal under Diagnostic Code 5054 because the preponderance of the evidence shows that his left hip's adverse symptomatology does not equate to markedly severe residual weakness, pain, or limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5054; Fenderson, supra; Hart, supra. As to a rating in excess of 50 percent for the left hip disability under Diagnostic Code 5250 due to ankylosis, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 60 percent, rating due to adverse symptomatology that equates to ankylosis because the record is uniform in documenting at least some left hip motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. Moreover, the May 2018 and August 2021 VA examiners specifically opined that the left hip was not ankylosed, and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also notes that the treatment records do not document ankylosis. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left hip disability under Diagnostic Code 5250 due to ankylosis at all times during the appeal. See Hart, supra; Fenderson, supra. As to a rating in excess of 50 percent for the left hip disability under Diagnostic Code 5254 for a flail joint and/or Diagnostic Code 5255 for fracture of shaft or anatomical neck of the femur, the Board notes that the record on appeal, including the findings at the May 2018 and August 2021 VA examinations as well as the December 2016 x-ray, are negative for a diagnosis of any of the above disorders. In fact, the August 2021 VA examiner opined that the Veteran did not have malunion or non-union of femur, flail hip joint, or leg length discrepancy and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide such findings because it is medical in nature. See Davidson, supra. Therefore, in the absence of the required adverse symptomatology, the Board finds that it will not rate the Veteran's left hip disability under either Diagnostic Code 5254 or Diagnostic Code 5255 at all times during the appeal. See Fenderson, supra; Butts, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.